August 13, 2018

December 08, 2017

January 31, 2018

A woman with severe back pain will be able to pursue a medical malpractice claim against her orthopedic surgeon after the Indiana Court of Appeals ruled that the clock on the two-year statute of limitations does not start until the patient discovers the malpractice.

Diane Zelman underwent spinal fusion in May 2010 to stop the pain in her lower back. After the procedure, the surgeon, Francesca Tekula, M.D., told Zelman the surgery was more involved than originally expected with the discovery of a second cyst and the decision to do a second-level fusion.

Zelman felt “intense pain” following the surgery and shared her concerns with Tekula but the surgeon maintained everything was fine. The patient sought out different specialists, receiving injections and pain medications along with physical therapy. She also met with another surgeon who told Zelman that a second back surgery would be “brutal” and had no guarantee it would alleviate her discomfort.

In 2014, Zelman underwent a second back surgery. Afterward, the surgeon, Michael Coscia, M.D., said he had found there was no fusion. Also there were no pedicle screws, which is extremely unusual because the screws are used as part of a fusion.

The next year, Zelman filed with the Indiana Department of Insurance a proposed complaint alleging medical negligence against Tekula and Central Indiana Orthopedics. The defendants filed a motion for summary judgment granted by the Delaware Circuit Court. Specifically, the court found Zelman had the ability to discover the alleged negligence before the statute of limitations deadline which was March 1, 2013.

Citing David v. Kleckner, 9 N.E.3d 147, 152-153 (Ind. 2014) and Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005), the appellate panel held the two-year limitation starts when the claimant either knew of the malpractice or learned of that facts that leads to the discovery of the malpractice.

The Court of Appeals pointed out that Zelman consulted several medical professionals and was initially discouraged from undergoing a second surgery.

“Given that the second surgery was required to discover the malpractice, and given that it was described as brutal with no guarantee of success, we cannot say as a matter of law that Zelman was not reasonably diligent when she did not have the second surgery sooner than she did,” Judge Elaine Brown wrote for the court. “Thus, we hold that a genuine issue of material fact exists as to when Zelman’s pain and diligent pursuit would have led her to discover that medical malpractice was the cause.”

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Marilyn Odendahl covers the Indiana General Assembly as well as law schools and bar associations across the state for the Indiana Lawyer. Prior to joining the Indiana Lawyer, she was a reporter for nearly eight years at The Elkhart Truth, in Elkhart, Ind., where she primarily covered business. She holds degrees from Ball State University and the University of Louisville.